FIGHTING CROSS-BORDER CRIME:
TO OVERRIDE
[ARTICLE 69b]
|
AMENDMENT TO: Treaty of |
Policy Area: Treaty on the Functioning of the
European Union, Part Three Policies and Internal Actions of the Union, Titl=
e IV
– Area of Freedom, security and Justice, Chapter 4 – Judicial c=
ooperation
in criminal matters, Article 69b
Amendment:
Clause=
2,
page 1, line 12, after ‘excluding’ insert –
‘=
;(i) Article 2, paragraph 67, inserted Chapter 4 and Ar=
ticles
69A to 69E TEC (TFEU) relating to judicial cooperation in criminal matters;=
and
“JUDICIAL COOPERATION IN CRIMINAL MATTERS
67) Articles 67 to 69 shall be repealed. The following
Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 =
of the
Treaty on European Union.
"CHAPTER 4 JUDICIAL COOPERATION IN CRIMINAL MATTERS=
ARTICLE 69 B
1. The European Parliament and the Council may, by means=
of
directives adopted in
accordance with the ordinary legislative procedure,
establish minimum rules concerning the definition of criminal offences and
sanctions in the areas of particularly serious crime with a cross-border
dimension resulting from the nature or impact of such offences or from a
special need to combat them on a common basis.
These areas of crime are the following: terrorism,
trafficking in human beings and sexual exploitation of women and children,
illicit drug trafficking, illicit arms trafficking, money laundering,
corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may a=
dopt
a decision identifying other areas of crime that meet the criteria specifie=
d in
this paragraph. It shall act unanimously after obtaining the consent of the
European Parliament.
2. If the approximation of criminal laws and regulations=
of
the Member States proves essential to ensure the effective implementation o=
f a
Union policy in an area which has been subject to harm=
onisation
measures, directives may establish minimum rules with regard to the definit=
ion
of criminal offences and sanctions in the area concerned. Such directives s=
hall
be adopted by the same ordinary or special legislative procedure as was
followed for the adoption of the harmonisation
measures in question, without prejudice to Article 61 I.
3. Where a member of the Council considers that a draft
directive as referred to in paragraph 1 or 2 would affect fundamental aspec=
ts
of its criminal justice system, it may request that the draft directive be
referred to the European Council. In that case, the ordinary legislative
procedure shall be suspended. After discussion, and in case of a consensus,=
the
European Council shall, within four months of this suspension, refer the dr=
aft
back to the Council, which shall terminate the suspension of the ordinary l=
egislative
procedure.
Within the same timeframe, in case of disagreement, and =
if
at least nine Member States wish to establish enhanced cooperation on the b=
asis
of the draft directive concerned, they shall notify the European Parliament,
the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation re=
ferred
to in Article 10(2) of the Treaty on European Union and Article 280 D(1) of
this Treaty shall be deemed to be granted and the provisions on enhanced co=
operation
shall apply.”
Consolidated Treaty Article(s):
1. Common action on judicial cooperation in criminal mat=
ters
shall include:
(a) facilitating and accelerating cooperation between
competent ministries and judicial or equivalent authorities of the Member
States, including, where appropriate, cooperation through Eurojust,
in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition
between Member States;
(c) ensuring compatibility in=
rules
applicable in the Member States, as may be necessary to improve such
cooperation;
(d) preventing conflicts of
jurisdiction between Member States;
(e) progressively adopting me=
asures
establishing minimum rules relating to the constituent elements of criminal
acts and to penalties in the fields of organised
crime, terrorism and illicit drug trafficking.”
Expl=
anation:
This new provision will allow the Uni=
on
to define certain criminal offences and set minimum sentences for those fou=
nd
guilty of them, overriding
The present
Article 29 TEU provides for “approximation, where necessary, of rules=
on
criminal matters in the Member States, in accordance with the provisions of
Article 31 (e)” under which common action on judicial cooperation in
criminal matters includes “progressively adopting measures establishing
minimum rules relating to the constituent elements of criminal acts and to
penalties in the fields of organised crime, ter=
rorism
and illicit drug trafficking.” Racism and xenophobia are not specifie=
d in
Article 31 (1) (e) however the Framework Decision on Racism and
Xenophobia was agreed by the Justice and Home Affairs Council
during the German Presidency. It is aimed at approximating Member States=
217;
laws and regulations regarding racism and xenophobia ensuring that the same=
behaviour constitutes an offence in all Member States. Under this <=
span
style=3D'font-family:Arial;font-style:normal;mso-bidi-font-style:italic'>Fr=
amework
Decision, all 27 EU Member States will have to ensure that the
conducts defined in this framework decision “are punishable by crimin=
al
penalties of a maximum of at least between 1 and 3 years of
imprisonment.” As the existing Article 29 TEU sets out the developmen=
t of
common action among the Member States in the fields of police and judicial
cooperation in criminal matters and the prevention and fight against racism=
and
xenophobia, it was considered that this objective could be achieved through=
approximation
of rules on criminal matters in the Member States.
The new Article 69 b (1) provides that
the
Furthermore, such an extensive listin=
g of
areas of crime under EU control will be endless as this provision provides =
that
the Council, acting unanimously after obtaining the consent of the European
Parliament “may adopt a decision identifying other areas of crime that
meet the criteria specified in this paragraph.” Hence, the European
Parliament acquires powers of consent (assent procedure). Under
the assent procedure, which in the Lisbon Treaty is referred
to as "consent", the European Parliament either accepts or reject=
s a
proposal but it cannot amend it.
It is =
still
probable that the UK will not have an opt out from substantive criminal law
measures since they will be adopted to ensure the implementation of another
Union policy and the decision-making procedure is only to be found in the
provisions of the policy in question. Therefore, it will fall outside of a
considered Protocol on the area of freedom, security and justice.
The European Court of Justice has, up
until now, been ruling that the Community has competence under the EC Treaty
for adopted criminal law measures when they are necessary for the
implementation of Community objectives. However, according to the Court
“the determination of the type and level of the criminal penalties to=
be
applied does not fall within the Community’s sphere of competence.=
221;
But it assures that criminal penalties must be “effective, proportion=
ate
and dissuasive.” The Lisbon Treaty confirms and expands the ECJ rulin=
gs.
Under Article 69b (2) “if the approximation of criminal laws and
regulations of the Member States proves essential to ensure the effective
implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish mini=
mum
rules with regard to the definition of criminal offences and sanctions in t=
he
area concerned.” The procedure to adopt such directives will be the s=
ame as
that followed to adopt the harmonisation measur=
es in
question. This means that in the majority of cases, the harmonisation
of criminal law will be decided by QMV through the ordinary legislative
procedure (co-decision procedure). The provision stresses “without
prejudice to Article 61 I”, therefore, the right to initiate legislat=
ion in
a quarter of the Member States. According to Article 61 I, the Commission w=
ill
share its right of initiative wit=
h a quarter of the
The power to determine criminal liabi=
lity
and to impose criminal penalties is a sovereign power which should be retai=
ned
by the
What about=
the
application for the use of the emergency brake? Article 69B(3) provides for an emergency brake on draft directives to “establish
minimum rules concerning the definition of criminal offences and sanctions =
in
the areas of particularly serious crime with a cross-border dimension”
and draft directives establishing minimum rules with regard to the definiti=
on
of criminal offences and sanctions to ensure the implementation of a Union
policy. Hence, if one